PART 2. PUBLIC UTILITY COMMISSION OF TEXAS
CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE PROVIDERS
SUBCHAPTER S. WHOLESALE MARKETS
The Public Utility Commission of Texas (commission) adopts new 16 Texas Administrative Code (TAC) §25.515, relating to Texas Backup Power Package Advisory Committee. The commission adopts this rule with changes to the proposed text as published in the September 29, 2023, issue of the Texas Register (48 TexReg 5608). The rule will be republished. New §25.515 implements Public Utility Regulatory Act (PURA) §34.0203 enacted by Senate Bill (SB) 2627 by the 88th Texas Legislature (R.S.). The new rule will establish an advisory committee, as required by PURA §34.0203, to advise the commission on the administration of the Texas backup power package program. Specifically, the new rule will establish the purpose, duties, composition, membership, procedures, and term of the committee.
The commission received comments on the proposed rule from East Texas Distribution Cooperatives (ETDC); Microgrid Resources Coalition (MRC), RPower LLC (RPower); Texas Electric Cooperatives (TEC); Texas Public Power Association (TPPA).
Section 25.515(b) - Purpose and Duties
Section 25.515(b) requires the committee to recommend criteria and procedures for the awarding of grants and loans under PURA Chapter 34, Subchapter B. Subsection (b) also requires the committee to submit written copies of its recommendations and meeting minutes to the commission.
TPPA expressed concern that §25.515(b) could be read to restrict public access to committee recommendations and argued that the commission has historically provided public access to meeting minutes for other groups such as interagency committees, stakeholder and industry task forces, work sessions, and, on occasion, open meetings. To ensure public access, TPPA recommended the commission requires the committee to publicly file all of its work product for the Texas Backup Power Package Program, including meeting minutes, materials, and reports.
Commission Response
The commission agrees with TPPA that the public should have access to the work product of the committee. Accordingly, the commission adds new subsection (b)(5) which requires the committee to publicly file on the commission interchange all of its recommendations, reports, and minutes.
Section 25.515(c) - Composition and Membership
Section 25.515(c) provides that the advisory committee will consist of between three and nine members and authorizes the executive director to solicit, evaluate, and, after a review of their qualifications, appoint candidates to the committee. Section 25.515(c) also allows interested candidates to submit a resume and statement of interest to the executive director via e-mail.
Committee candidate representation and qualifications
RPower, MRC, TEC ETDC, and TPPA recommended the commission expand subsection (c) to require more diverse representation by members with different fields of expertise and backgrounds, and business segments that are applicable to or affected by the backup power package program. RPower and MRC noted that proposed subsection (c) does not specify what the qualifications should be for committee candidates selected by the commission's executive director. Accordingly, RPower and MRC recommended the advisory committee include candidates representing various microgrid technologies, such as microgrids with different fuel types, and include members that have expertise in engineering, finance, and Texas energy policy. MRC further recommended the committee include the entire microgrid "value chain" which includes microgrid customers, investors, developers, providers of automation and controls technologies, providers of software, and a utility representative.
TEC, ETDC and TPPA recommended that the commission consider modifying and expanding the commission segments to ensure all business segments affected by the backup power package program, including consumers, are adequately represented in accordance with Texas Government Code §2110.002(b). To ensure fundamental concerns and differences are recognized by the committee, TEC and ETDC specifically recommended the commission consider candidates representing critical facilities such as hospitals, schools, or first responders; geographically diverse regions of the State such as the Gulf Coast and Panhandle; and different electric providers in Texas such as electric cooperatives, municipally owned utilities, and investor-owned utilities. ETDC recommended at least one advisory committee member represent electric cooperatives given the history of such entities serving customers in geographically remote and diverse locations across Texas. RPower, MRC, and TEC provided redlines consistent with their recommendations.
Commission Response
The executive director will take the above recommendations of commenters regarding the composition of the committee into consideration when reviewing applicants and selecting members. However, to ensure the executive director possesses sufficient flexibility to fully evaluate candidates based on the availability and interest of possible members, the commission declines to impose specific criteria in the rule for selection of committee members. A holistic, individual review of candidates is necessary to ensure adequate committee representation, and the establishment of pre-determined requirements or quotas for membership would impede that goal. Preserving this flexibility is also consistent with statute. PURA §34.0203 does not impose any limitations on the composition of the committee, and Tex. Gov't Code Chapter 2110 does not require the rule establishing the committee to include membership requirements.
The commission further notes that the function of the advisory committee is to serve as one source of input to the commission's efforts to implement the Texas backup power package program. The committee itself does not have any independent policymaking authority. The commission will also receive input from commission staff, a statutorily required research entity, and any interested person that chooses to file comments in the commission's rulemaking process. Moreover, the recommendations made by the committee will be publicly available, allowing any commenter to review and critique the committee's recommendations prior to the adoption of a rule implementing the Texas backup power package program.
Additionally, the commission declines to explicitly codify the requirement of Tex. Gov't Code, Chapter 2110.002(b)(1) and (2) for advisory committees to provide balanced representation between industry and consumer interests because it is unnecessary. The requirements of Chapter 2110 apply to the backup power package committee regardless of any specific reference to Chapter 2110 in the rule.
Number of Committee Members
RPower, MRC, TEC, ETDC, and TPPA commented that a three-member committee is likely too small to provide adequate representation. RPower and MRC indicated that the committee may need to comprise up to 11 members to be sufficiently diverse. TEC, ETDC, and TPPA noted that Tex. Gov't Code §2110.002(a) authorizes an advisory committee to have up to 24 members. TEC and ETDC specifically recommended the maximum number of committee members be increased to 24 for the same reasons. RPower, MRC, and TEC provided redlines consistent with their recommendations.
Commission Response
An advisory committee of between three and nine members allows the commission to efficiently assemble the advisory committee so the committee can begin work on its stated duties. At the same time, a maximum size of nine members will allow all members to meet with sufficient frequency to make meaningful recommendations to the commission. Increasing the upper limit of committee member positions will compound scheduling and coordination difficulties and adversely affect the committee's ability to provide recommendations to the commission in a timely manner. Further, as stated above, the executive director will take diverse representation into consideration when selecting committee members, and there will be an opportunity for any interested person who is not selected to serve on the committee to review the recommendations of the committee and provide public comments in the commission's rulemaking process.
Section 25.515(d) - member removal
Section 25.515(d) allows the executive director to remove an advisory committee member "for any reason or for no reason."
TPPA objected to granting the executive director the unilateral authority to remove a committee member without cause and recommended that portion of the provision be removed. TPPA commented that such authority may impede the committee's objective of providing advice to the commission by preventing open and honest discussion due to fear of retaliation. TPPA noted that the commission has historically empowered the executive director to appoint members of other task forces or committees but has never authorized the director to wield unilateral authority to remove a member. TPPA further argued that even task forces led by commissioners have only allowed for removal of a member for "lack of participation or any other reason with written notice to the member."
Commission Response
The commission modifies the rule to remove the ability of the executive director to unilaterally remove a committee member, as recommended by TPPA. The commission also modifies the rule to allow the executive director to recommend the removal of a committee member and to require the executive director to notify the removed member and the presiding officer of the committee if the commission does remove a member.
This new rule is adopted under the following provisions: PURA §14.002, which provides the commission with the authority to make adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction; PURA §34.0203, which requires the commission to convene an advisory committee in the manner provided by Chapter 2110 of the Texas Government Code. The new rule is also adopted under Texas Government Code, Chapter 2110 which provides a framework for the establishment of an advisory committee by a State of Texas government entity.
Cross reference to statutes: Public Utility Regulatory Act §§14.002 and 34.0203, and Texas Government Code Chapter 2110.
§25.515.Texas Backup Power Package Advisory Committee.
(a) Definitions.
(1) Advisory committee -- the advisory committee convened under the authority described in the Public Utility Regulatory Act (PURA) §34.0203.
(2) Texas backup power package -- a stand-alone, behind-the-meter, multiday backup power source that can be used for islanding.
(b) Purpose and duties. The advisory committee is established to recommend criteria for the commission to employ in making a grant or loan under PURA chapter 34, subchapter B. The advisory committee must:
(1) No later than October 1, 2024, submit, in writing, recommendations for the types of Texas backup power package projects that should be funded by loans and the types of Texas backup power package projects that should be funded by grants.
(2) No later than October 1, 2024, submit, in writing, a report to the commission with recommendations for procedures for the application for and awarding of a grant or loan in accordance with PURA chapter 34, subchapter B.
(3) Make any other recommendation to the commission regarding matters associated with PURA chapter 34, subchapter B that the advisory committee finds appropriate.
(4) Record minutes of each advisory committee meeting and provide a copy of those minutes to the commission.
(5) Publicly file all written recommendations, reports, and minutes produced by the committee on the commission interchange.
(c) Composition and membership. The advisory committee will consist of no fewer than three and no more than nine members. The executive director is authorized to solicit candidates, evaluate their qualifications, and make an appointment to the advisory committee to fill any open position on the advisory committee. The executive director will select members of the advisory committee after reviewing qualifications of potential members. Persons interested in serving on the advisory committee may submit a resume and statement of interest to the executive director at TexasBackupPower@puc.texas.gov.
(d) Membership term. An advisory committee member's term begins when the executive director files notice of the member's appointment on the commission's filing interchange. Each member will serve on the advisory committee until the member resigns or is removed. A member may resign by submitting written notice of resignation to the executive director. The executive director may recommend the removal of a member. The commission may remove an advisory committee member for lack of participation or any other reason. The executive director must notify the removed member and the presiding officer of the committee of the member's removal.
(e) Reimbursement. Members of the advisory committee will not be reimbursed for expenses.
(f) Meetings. The first advisory committee meeting will be called by the executive director. At this first meeting, the advisory committee members must designate a presiding officer to preside over the advisory committee and report to the commission. The presiding officer must call all subsequent meetings of the advisory committee as frequently as necessary to carry out the advisory committee's purpose. A majority of seated members will constitute a quorum necessary for carrying out advisory committee business. The advisory committee may seek and incorporate the input of any person while carrying out its duties.
(g) Duration. The advisory committee will automatically be abolished on the earlier of 180 days after the date the advisory committee delivers the reports described in subsection (b) of this section or four years after the effective date of this rule.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 3, 2023.
TRD-202304064
Adriana Gonzales
Rules Coordinator
Public Utility Commission of Texas
Effective date: November 23, 2023
Proposal publication date: September 29, 2023
For further information, please call: (512) 936-7322